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DISCLOSE Act Is an Opening, Not a Barrier

The DISCLOSE Act, in plain language, advocates that the American voters should know where the money in their elections comes from.

Anyone who has a problem with that probably has something to hide.

Yes, good government groups like Common Cause are indignant about the $430+ million (and counting) in funding that so-called “independent” groups poured into the 2010 elections — and you should be, too. It’s your representation that was sold to the highest bidder, and it’s the purchasers’ interests that will prevail over your own. We know how much this election cost, and now we want to know who was buying.

Although the Supreme Court opened the floodgates for corporate cash by ruling that campaign donations are the equivalent of free speech (Citizens United), it also has affirmed at least twice that disclosure is necessary. As articulated in Doe v. Reed, “disclosure…does not as a general matter violate the First Amendment” and “the State’s interest in preserving the integrity of the electoral process suffices” to defeat the idea that free speech should be anonymous speech.

Even in the Citizens United case, Justice Anthony Kennedy stated, and seven of his fellow justices concurred, that “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Without disclosure, Americans don’t get to make those informed decisions, and special interest influence on candidates and elected officials isn’t measurable. Money may or may not be speech, but knowledge absolutely is power. Denying voters access to the information we deserve isn’t free speech, it’s subterfuge.

The consequences of free speech can be significant. Some people won’t like what you say and will boycott your business or call you terrible names. That’s uncomfortable, but that’s democracy. The opposite of democracy is denying the people their right to respond through speech or action.

Look, I’m sorry if candidates, corporations, and independent groups find it onerous to report the sources of the funds they are using to run for office, influence nominations and elections, and manipulate public opinion. But we the voters find it onerous to try and figure out what they’re about, what they stand for, and who’s paying for their speech without the benefit of the whole story. And we find it suspicious that they want to hide it.

During oral arguments in Doe, Justice Antonin Scalia rightly acknowledged that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Doomed, indeed, if such acts can be, in Scalia’s opinion, “hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

The DISCLOSE Act, as it stands now, would require corporations and nonprofits involved in political campaigning to disclose the identity of their top donors. It would also bar foreign corporations, government contractors, and TARP recipients from making political expenditures.

And DISCLOSE would require political spenders to publicly stand by their ads, just as candidates for Congress do. In fact, the company CEO or highest-ranking official would have to appear on camera, saying “I approve of this message.” If a company can’t stomach that kind of public statement, for fear of consumer reaction or perceptions of conflict of interest, they can make a business and economic decision to abstain from such funding. That decisionmaking process is their act of free speech. And it’s only fair to give voters a decisionmaking tool: disclosure.

Partial disclosure does not go far enough to establish accountability for the free speech that the Citizens United decision granted. Nor does it serve as an instrument to promote the public interest. The First Amendment does not protect anyone from criticism, and free speech is not absolute. As Americans, we’ve agreed that some speech is too costly to be considered free. Slander and libel, speech that infringes on copyright, speech that threatens or harasses other people or poses an imminent danger of violence are all punishable. Why shouldn’t speech that poses an imminent threat to our democracy also be regulated?

Secret campaign donations don’t deserve the protections that Citizens United has afforded them, but if money equals speech (and the Supreme Court says it does), then money has the same limitations as speech. If citizens should be responsible for the positions they have taken, so should corporations, committees, and nonprofits who play in the political sandbox.

(At this point, I must insist that money should not equal speech. Money purchases methods of speech — media ads and the like — that are the outlets of free speech. But the exchange of money always has and always will define commerce, not speech.)

It’s not disclosure that disenfranchises voters, leading them to do nothing. It’s lack of disclosure, secrecy in the system of government we ought to be able to trust. We are shut out of the system by concealment and assurances that our best interests are at heart. But we cannot rely on individuals and groups inside the Beltway to tell the whole story, especially about their agendas, which we aren’t privy to. And we can’t just take their word for it when independent groups say they’re not colluding with campaigns. Give us the data and let us draw our own conclusions.

Suggesting that disclosure takes public attention away from campaign content is at odds with the premise of money as speech, which the secret money donors hold as their very foundation. If money is speech, then we have a right to hear it. If focusing on the money distracts from the speech, then the money isn’t the speech, is it?

Campaign donors can still have their rights without infringing on ours. Is the influence, access, or power they gain worth the potential public protest? That’s for each donor to decide. And whether to engage in protest against them is for us to decide. But the equation must be balanced.

Leaving aside whether money is speech and whether speech is free for a moment, I turn to Common Cause founder John W. Gardner, who said, “America’s greatness has been the greatness of a free people who shared certain moral commitments. Freedom without moral commitment is aimless and promptly self-destructive.” Who can deny that we have a shared moral commitment to ensure the integrity of our elections and system of government, the things that make us free in the first place? Political players have their freedom of speech and we’ll have our freedom of information, and together we’ll all have democracy. Without both, we invite self-destruction.

The DISCLOSE Act isn’t perfect, but the alternative — secret money, unidentified sources, unparalleled spending without any accountability — is an abomination. Until the real solution is before us — the Fair Elections Now Act just might be it — we can’t turn up our noses at the only current legislation that protects and informs the very people with the most at stake in elections: American citizens.

Also from This Issue

Bruce Cain’s lead essay calls for a compromise on campaign finance disclosure. We want many things from our election law, he notes – the freedom to speak, a process that both is and appears to be just, a well-informed electorate, and protection for the holders of controversial opinions. Cain suggests semi-disclosure as a good way to get most of what we want. He advocates “the full reporting but only partial disclosure of campaign donor information.” Semi-disclosure of the type Cain suggests is already used in the release of census data, where individual privacy is respected even while demographers gain valuable information from the aggregate. Giving voters information about campaign contributions without giving them donors’ names would allow voters to consider the nature of a candidate’s or a measure’s supporters while shielding those supporters from personal attack, Cain argues.

In his response essay, John Samples notes that disclosure discourages people from participating in the political process. When someone decides not to do something, that decision is all but invisible to researchers who might wish to study it. Disclosure also shifts attention from the content of speech to the identity of the speaker, which is not necessarily the best basis for decisionmaking. The paternalism of disclosure is also a problem, as he sees it: the government appears to be trying to keep you from hurting yourself, even if you decline to fulfill your responsibilities as a citizen by examining the issues on their merits.

Richard Hasen offers some objections to Cain’s case for semi-disclosure. Cain’s plan doesn’t seem to appreciate sufficiently the benefits of disclosure; whereas public disclosure and analysis by independent watchdog groups can provide fairly sophisticated monitoring of campaign finance data, we shouldn’t expect the government to provide all the details about patterns of campaign contributions that we might desire. Further, he finds little benefit to demographic data about campaign finance shorn of names and public identities of major contributors.

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